The Long Island Insurance Company v. Hall
| Decision Date | 01 May 1896 |
| Docket Number | 41 |
| Citation | 46 P. 47,4 Kan.App. 641 |
| Parties | THE LONG ISLAND INSURANCE COMPANY, OF BROOKLYN, N. Y., v. M. E. HALL et al |
| Court | Kansas Court of Appeals |
Opinion Filed September 12, 1896.
MEMORANDUM.--Error from Republic district court; F. W STURGES, judge. Action by M. E. and I. B. Hall, partners, as M. E. & I. B. Hall, against The Long Island Insurance Company, of Brooklyn, N. Y., to recover on a policy of fire insurance. Judgment for plaintiffs. Defendant brings the case to this court. Affirmed. The opinion herein, filed September 12, 1896, states the material facts.
Judgment affirmed.
H. M Jackson, for plaintiff in error.
Noble & Hogin, for defendants in error.
OPINION
On March 5, 1891, the defendants in error commenced their action in the district court of Republic county to recover of plaintiff in error the sum of $ 1,000 on a policy of insurance issued January 16, 1890, upon a loss by fire, alleged to have occurred on March 6, 1890. Trial was had before the court and a jury, a general verdict was returned by the jury, and judgment rendered thereon in favor of the plaintiffs below in the sum of $ 850 and costs. Motion for a new trial was filed and overruled, and defendant below brings the case here for review.
The petition in this case alleges the incorporation of the defendant, the issuance of the policy for the term of one year, the payment of the premium thereon to insure against the loss by fire, not to exceed the sum of $ 1,000, on a stock of general merchandise, and permission to carry other and additional insurance not to exceed the amount of $ 3,000; that at the date of the loss the policy was in full force and effect; that the loss occurred on the 6th of March, 1890; that the stock of merchandise insured was entirely destroyed by fire, except such things as are specifically mentioned; that the stock of merchandise destroyed was worth at the time of the fire the sum of $ 4,447.50; that the actual loss to the plaintiffs by reason of the fire was $ 4,447.50. And it further alleges, that immediately after said loss plaintiffs duly notified the defendant, as required by the terms of said policy, and, subsequently to the making out of the said notice of loss, the said plaintiffs made out and transmitted to the defendant a verified statement and proof of loss, as required by the terms of said policy; that afterward they notified the defendant that they were ready to name one of the arbitrators and submit to arbitration, although there had been no dispute or disagreement as to the amount the plaintiffs ought to recover -- the defendant denying all liability whatever; that they have performed all and singular the conditions and obligations of said policy, and still the defendant has not paid the said loss or any part thereof; that they have been at an actual loss of $ 4,447.50, and that the said defendant is by the terms and conditions of the said policy of insurance indebted to the plaintiffs in the sum of $ 1,000, and that the same is long past due and entirely unpaid, and that defendant entirely refuses to pay the same; that they have done and performed each and every condition of the said policy necessary to be done to entitle them to recover the above sum of money, and still the said defendant refuses to pay the said loss; that the defendant, well knowing that the said sum of money is still due and unpaid and that the plaintiffs are entitled to the same, still refuses to pay them. The original policy of insurance is attached to the petition as an exhibit, and is made a part thereof.
Against this petition the defendant filed its motion to make more definite and certain, which was by the court overruled, and it thereupon filed its answer containing, first, a general denial of each and every statement, averment and allegation in said petition contained, except such as were expressly admitted. For a second defense, it admitted its incorporation; the issuance of the policy sued upon; a permission to carry additional insurance as stated in the petition; that the policy was in full force on March 6, 1890; that the loss by fire occurred to said stock of goods so insured, but alleged that the value, extent, nature and amount of the loss were to the defendant unknown, and the extent thereof as to value and kind was therefore denied; that the loss occurred on March 4, 1890; that notice and proof of loss were served upon said defendant within the time required by the terms of the policy; that the property was insured in the sum of $ 1,000. It alleged that by the terms of the policy it was not to be liable to exceed three-fourths of its proportion of all the insurance of the true value of the property insured; that all of the insurance upon such property at the time of the loss was $ 4,000.
For a third defense, it alleged that the amount of loss and damage claimed by the plaintiffs at the time of the attempted adjustment of the loss in and by their said proof of loss was largely in excess of the true actual cash value of the property, and of the actual loss and damage by them sustained; that at the time of making the said claim of value of said property and the proof of loss defendant demanded the appointment of appraisers and an umpire to determine the amount of said loss and damage, as provided by the terms of said policy, because the same was excessive, as aforesaid, and which demand was refused and denied by the plaintiffs; that no arbitration was had of such loss, but that the said plaintiffs wholly refused and denied defendant the right to have an arbitration and award, and to have the damages sustained by said plaintiffs by reason of said fire, and for which the defendant was liable, ascertained and determined by said arbitrators and award; that on or about the 23d of June, 1890, without any arbitration, award, or demand, and without the performance of the conditions of said policy on the part of the plaintiffs, they commenced suit in the district court of Republic county against defendant to recover the amount of insurance specified in and by said policy upon which summons was issued; that defendant appeared and answered; that plaintiffs replied, and the cause remained pending in said court until the 19th of February, 1891, when the same was dismissed by the plaintiffs; that during all of said time the plaintiffs denied the right of defendant to have and demand or require an arbitration and appraisement of damages so sustained, and denied during all of said time the right of the defendant to have, name or designate an arbitrator or to demand or require the plaintiffs to submit to an arbitration of the said differences between the plaintiffs and defendant, but long after said February 19, 1891, and immediately before the commencement of this action, said plaintiffs notified defendant of their readiness to agree upon arbitrators to adjust and arbitrate said claim.
For a fourth defense the defendant says, that by the terms of said policy it is provided as follows: "No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with the foregoing requirements, nor unless commenced within 12 months next after the fire"; and defendant alleges and charges the fact to be that said action was not commenced within 12 months next after the fire, and that by the said terms of said policy plaintiffs are barred from prosecuting said action any further and from any recovery therein.
For a fifth defense, defendant alleges and charges the fact to be that said petition does not state facts sufficient to constitute a cause of action in favor of the plaintiff and against defendant.
To this answer plaintiff filed a reply, consisting of (1) a general denial; (2) a special denial that the action was not commenced within one year from and after the alleged fire and loss; (3) a denial that defendant ever made a demand for arbitration; (4) a denial that there was ever any disagreement as to the amount of plaintiffs' recovery, but claiming that the defendant denied all liability whatever under the policy; (5) an allegation that the plaintiffs duly notified the defendant that they were ready to name one of the arbitrators; that defendant refused to name one or submit to arbitration, and specially denying that the defendant was ever entitled to arbitration, and that any dispute arose as to the amount of recovery.
Upon the trial of the cause, it was admitted that the proofs of loss and certificate were sworn to April 10, 1890, and that about April 10, 1890, they were forwarded to the defendant and received in due course of mail; that the plaintiffs, on June 23, 1890, commenced an action against the defendant, as set forth in defendant's answer; that it remained pending in the court until February 19, 1891, when the same was dismissed without prejudice to a future action. It was also admitted that at the time of the fire by which the stock of goods was injured there were three policies of insurance upon the said stock in favor of the plaintiffs in the aggregate amount of $ 4,000; that the policy sued on in this action was one of the three, and that there was a "three-fourths" clause in each of said policies.
The defendant filed its motion to make the petition more definite and certain in this, to wit: (1) To...
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